Another day, another Fair Use issue in the headlines. Imagine my surprise as I began to do research to update my previous article on the Fair-Use/Copyright kerfuffle between the Associated Press (AP) and street-artist/icon-wanna-be Shephard Fairey, to discover that the case was dismissed yesterday, January 11th, 2011, and that the two parties had entered into an undisclosed financial arrangement. I loved the lead paragraph from the Animal/New York website:
US District Judge Alvin Hellerstein has dismissed the cases between Shepard Fairey and the Associated Press. And so, the whole copyright infringement vs. fair use vs. fake evidence ballyhooed mess has been resolved with a “confidential” financial settlement. The AP and Fairey will also “collaborate on a series of images,” according to the AP’s press statement. Wait, what?
For those who may not be familiar with the case, Shephard Fairey has been practicing his craft of graphic commentary/stencil graffiti for a number of years and found some notoriety with the Andre the Giant/OBEY image. According to Fairey, in an LA Times video/interview, he said that he wanted to do something for the Obama campaign around the time of the Super-Tuesday push, found an image of Obama and by the following day had a poster with the word HOPE. The poster and image instantly went global. Fairey said that the image captured the leadership and humanity of the candidate and the word HOPE captured the feelings of his supporters. Success.
After the conclusion of the campaign AP threatened to sue Fairey for the use of the photograph that they believed he used to create his poster. Then in February of 2009, Fairey decided to beat AP to the punch and sued AP, claiming that his use of the photo was covered under Fair Use. To make things even more complicated, the photographer who allegedly took the original image, Mannie Garcia, sued AP claiming that he was a freelancer and not an AP employee when he shot the disputed photo and therefore he was entitled to compensation from this litigation. At the end of February 2009 NPR interviewed Fairey and Garcia (separately). It probably didn’t help to settle things down that the disputed poster had just been hung in the US National Portrait Gallery on January 20th, 2009.
It was a textbook case on Fair Use that I immediately chatted with my students about. Looking at Fairey’s actions and pre-emptive lawsuit, those who had read the requirements for a Fair Use defense could say in unison: Fair Use is not a right but a defensible position. Again, Fair Use is not a right but a defensible position.
At the time I asked around to see what others in the media business felt. I asked photographer and TWiT contributer, Scott Bourne, his take on the case (via Twitter) and he said, “I think the artist stole the photo and his fair use claim will end up costing him treble damages. All depends on whether AP owns [the] pic.”
When NPR’s Terry Gross asked the photographer of the Obama image, Mannie Garcia, his take on Fairey using his photograph he said, “[It’s] crucial for people to understand, simply because it’s on the Internet doesn’t mean that it’s free for the taking, and that just because you can take it, doesn’t mean that it belongs to you.”
A cursory survey of opinions online at the time from the likes of Milton Glaser on BoingBoing, Mark Vallen on Art-for-Change, The Institute of Contemporary Art/Boston, and Chal Pivik on the Los Angeles METBlogs, seems to show that the more the pundit knows about the actual steps or changes to the photo that Fairey made to create the poster the more likely the writer came down on the side of Fairey’s Fair Use claim. NPR, of course, did an excellent job covering all of the angles of the story, finishing up with a discussion with law professor Greg Lastowka on the case and Fair Use. Click on the link/player at the end of this story for NPR’s interview.
And so the case stayed here for about ten-months with the photographers crying foul and the graphic artists flipping the bird. Then in October of 2009 Fairey dropped a bomb admitting that he’d lied about which photograph he’d used and destroyed evidence of the actual images he’d used (which he feared would have proven AP’s case because the image required far less manipulation to create the poster). Fairey’s attorneys, which included support from Stanford University’s Fair Use Project, withdrew their support. Photographers 1, Graphic Artists 0.
In my original article I concluded that had my research on this story ended with the NPR piece I would have been left with a different image of Shepherd Fairey than the one I gained via a series of videos that were created long before Obama campaign, when Fairey’s main claim to fame was his “Andre the Giant: Obey!” world-wide sticker/poster/street art project. Fifteen-plus arrests later for “street art” activities and it’s little wonder that he’d be a media darling while at the same time being in trouble for taking someone’s else’s photograph and not thinking twice about using it to make the Obama: Hope image. Even though it would have gone completely counter to his street-artist-persona, a simple call or email to AP would have saved him all of this hassle.
But who am I kidding. In one of the videos, when Fairey says, “Shephard Fairey: Icon” for the G4 series of the same name, implying his own status in the art/street culture world, I was put off by the arrogance and willingness to play both sides of the media. I predicted that when all of this plays out the title of his next video would be, “Shephard Fairey: Oops.” But I guess given the out of court settlement, the Fair Use test case was kicked to the curb and Fairey is left to say either, “Shephard Fairey: Halfsies” or “Shephard Fairey: Do You Take Checks?”
Media:
NPR: Fresh Air: Shepard Fairey: Inspiration Or Infringement?
If you don’t see the audio player above, you can switch to Firefox or Click here to listen to the podcast
Los Angeles Times Video: Hope: Shepard Fairey and Barack Obama
Sources:
Image: (FILES) People walk past Shepard Fairey’, retrieved from http://www.boston.com/ae/specials/culturedesk/FILES-US-POLITICS-INAUGURATION-PORTRAIT_001.jpg on 01/13/2011
Shepard Fairey Settles Case, Collaborates With AP Instead by Marina Galperina, retrieved from http://animalnewyork.com/2011/01/shepard-fairey-settles-and-collaborates-with-ap/ on 01/13/2011
Barack Obama artwork case settled, retrieved from http://www.bbc.co.uk/news/entertainment-arts-12170620 on 01/13/2011
Image: Giant/OBEY, retrieved from http://www.graffiti.org/faq/kataras/kataras_fig3Fairey.jpg on 01/13/2011
Obama photo: Mannie Garcia (AP)/Obama image: Shepherd Fairey, retrieved from http://www.boingboing.net/2009/02/09/milton-glaser-weighs.html on 04/09/2009
Obama “Hope” Image vs. One Lost Shephard by Joe Bustillos, retrieved from https://joebustillos.com/2009/04/10/obama-hope-image-vs-one-lost-shepard/ on 01/13/2011
Shepard Fairey: Inspiration Or Infringement? NPR Fresh Air interview, retrieved from http://www.npr.org/templates/story/story.php?storyId=101182453 on 02/27/2009
Hope: Shepard Fairey and Barack Obama – Los Angeles Time interview/video retrieved from http://www.youtube.com/watch?v=q_EOzZ9iaJQ&NR=1 on 04/07/2009
ICONS: Shepard Fairey, YouTube video retrieved from http://www.youtube.com/watch?v=ZNv-9IOBZZo on 04/07/2009
It’s unfortunate that this case didn’t go to trial. It was a high profile case and had the court ruled on the fair use defense here, it could have been extremely helpful in letting people know one way or the other what the limits really are.
I see “fair use” thrown around by just about everyone as an excuse, not a defense. I still believe that this wasn’t fair use, but in the end, the almighty dollar won the day and we’ll never really know.
One thing we do know is the lawyers got paid.